1

DISSERTATION ON ADVOCACY MEDIATION

ATHANASIA KOMPOURI

Supervisor: Dr Apostolos Anthimos

International Hellenic University

LLM in Transnational and European Commercial Law and Alternative Dispute

Resolution

2012-2013

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ABSTRACT

My research examines attorneys’ relationship with mediation and specifically

how their presence affects the process of mediation itself. I try to analyze these two

senses and present the interactive relationship between them and the way they are

connected.

First of all in my introduction, I analyze the meaning of the term

‘‘mediation’’ as well as the different mediation forms that exist. I focus then on the

differences between mediation and the other Alternative Dispute Resolution models,

such as arbitration or mini trials and of course I refer the main benefits and drawbacks

of the mediation process. I finish my introduction part with the explanation of the

term ‘‘Mediator’’ and which roles he/she can play, something that I consider is

necessary so as to understand the main topic which is the lawyers as mediators or as

legal counsels in the process.

Following, I turn back in the history background and I write about the

evolution of mediation and mediators in different States from the ancient years until

now and I refer to the legislation of mediation in European Union as well as in other

countries.

I separate the main topic of my research in four parts: a) Lawyers as

gatekeepers of mediation, b) Role of lawyers in mediation and how they affect the

process, c) Mistakes of lawyers during the mediation process and d) Parties’

participation in the process. These parts indicate the exploration of the motives of

lawyers who have seen fit to engage with the process as well as the advantages and

disadvantages that this involvement may have, their role during the mediation

procedure and some small or sometimes crucial mistakes they may make. Finally, I

underline that it is the parties’ choice of whether the lawyer attends the session(s), as

well as the extent of participation by the lawyer in the process.

In the forth chapter I make a short review of the situation in Greece. Firstly,

the framework of Mediation in Greece, meaning the Greek Law on mediation, some

examples of Greek Mediators and last but not least, I add some research about what

happening now and what are the future opportunities of mediation and lawyers in it.

In the final chapter I try to reach some conclusions about this Alternative

Dispute Resolution model and this strange and interactive relationship between

attorneys and mediation.

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TABLE OF CONTENTS

I. Preface……………………………………………………….…..4-5

II. Introduction…………………………………….…………......6-12

A. The meaning of mediation………………………………………6

B. Mediation forms………………………………………………....6-7

C. The differences between mediation and other ADR models........7-8

D. Benefits and drawbacks of mediation……………………...…....8-9

E. Mediators…………………………………………………....…..9-12

III. History background………………….……………….....….13-18

A. Legislation……………………………………………........…….17-18

IV. Lawyers' involvement in mediation……………..…..…....19-30

A. Lawyers as gatekeepers of mediation…………………………....21-22

B. Role of lawyers in mediation and how they affect the process.....22-26

C. Mistakes of lawyers during the mediation process………….......26-28

D. Parties’ participation in the process……………………….….....29-30

V. Mediation in Greece and Greek mediators……........….....31-36

A. What happening now and future opportunities………….... …….34-36

VI. Conclusions…………………………………………................37-38

VII. Research sources………………………………..…..…...…..39-41

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PREFACE

Nowadays, an increasing number of jurisdictions have established mediation,

or other alternative dispute resolution (ADR) processes as a prerequisite to

adjudication. As one would expect the interaction of lawyers within mediation, like

growth in the process itself, similarly varies considerably across different nation

states. Lawyers in their droves have rushed to take up their place in the brave new

world of mediation. Nonetheless, many more remain on the fringes unconvinced by

the promise of mediation. In short, it can be said that the more ‘mainstream’

mediation has become in a jurisdiction, the more it tends to be populated by lawyers,

at least in certain dispute areas. This is no coincidence1.

It should also be stressed here that the term ‘mediation’ is not an easy one to

pin down in a definitional sense. Too many opinions have been expressed about it.

Distinct mediation approaches have developed across a range of different contexts. In

extremis, one ‘mediation’ process may be barely recognizable to another. While in

some settings, mediation is no more than negotiation, meaning a quick way perhaps to

bang heads together aided by the promptings of a third party, or in the words of Carrie

Menkel-Meadow, “[i]n its most grandiose forms, mediation theorists and proponents

expect mediation...to achieve the transformation of warring nation states, differing

ethnic groups, diverse communities, and disputatious workplaces, families and

individuals, and to develop new and creative human solutions to otherwise difficult

and intractable problems...it is a process for achieving interpersonal, intrapersonal and

intrapsychic knowledge and understanding.”2

The effect that lawyers have had on creating particular normative mediation

forms in different contexts and how easily they ‘fit’ into distinct manifestations of the

process are exactly the key facets of my dissertation. In my work I will try to explain

that the interaction between lawyers and mediation is a very complex, controversial

and often emotive issue. Opinions, when expressed, are often hotly contested. In my

work I also examine the motives of those lawyers who have become involved in

mediation and equally those who have set their face away from the process. In both

senses lawyers’ motives may be practical or principled; altruistic or selfish; informed

1Clark Bryan, Lawyers and Mediation. Springer, New York, NY, USA, 2012, p. vi

2Menkel-Meadow (2001), pp xiii–xiv.

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or fuelled by bare. This work also analyses the appropriateness of lawyer involvement

(as well as the law that they carry with them) in mediation and the effect that the

addition of lawyers has had upon the practice of mediation. It has been argued

cogently, for example, that in certain contexts, lawyers have co-opted mediation and

begun to reconstruct the process in their own image with legal bargaining taking the

foreground. By contrast, mediation in some contexts has been subject to cogent

critiques regarding it as a ‘law-less’ process, often foisted upon the weak and

disempowered. In this context, many would see the inclusion of lawyers, either as

mediators or party advocates, as a necessary legal fillip to protect the rights of

participants3.

Surveys of lawyers’ attitudes to mediation often paint a picture of a generally

appreciative legal community positive in its outlook on mediation, at least in the

abstract,4 although that does not seem to have necessarily translated into an upsurge in

voluntary engagement with the process. Indeed, the pace of development of the

process has varied significantly across different countries and in respect of distinct

dispute areas within each jurisdiction. Despite decades of promotion and publicity, in

many nations the practice of mediation and therefore the lawyers’ involvement with it

remains disputable5.

3Clark Bryan, Lawyers and Mediation. Springer, New York, NY, USA, 2012, p. vii

4See for example the following studies: Brooker (2001) (England and Wales); Clark and Dawson

(2007),Agapiou and Clark (2011)(Scotland); Zariski (1997) (Australia); Lande (2000), Kakalik

et al. (1996) (USA); ADR Center (2010) (European Union); Sela (2009)(Israel); Saville-Smith

and Fraser (2004) (New Zealand). 5Clark Bryan, Lawyers and Mediation. Springer, New York, NY, USA, 2012, p. 29

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INTRODUCTION

The meaning of mediation

Mediation as a means of settling disputes is getting a lot of attention these

days. It is a big business that is practiced by lawyers and non-lawyers, and is closely

related to the business of law.

Mediation as used in law is a form of alternative dispute resolution (ADR), a

way of resolving disputes between two or more parties with concrete effects. In a

mediation procedure, a neutral but well-trained third party, the mediator, aids the

parties in the settlement of their disagreement, clear up misunderstandings, and find

out concerns, so as to reach a mutually satisfactory settlement of their dispute. In

International Law, mediation is the friendly interference of one state in the

controversies of nations. It is recognized as a proper action to promote peace among

nations. This alternative dispute resolution model has a structure, timetable and

dynamics that "ordinary" negotiation lacks. The process is private and confidential,

possibly enforced by a specific law each time. Disputants may mediate disputes in a

variety of domains, such as commercial, legal, diplomatic, workplace, community and

family matters. More specifically mediation may be used to deal with a range of

disputes including: family disputes involving children (in appropriate circumstances)

and/or money; neighborhood disputes; consumer disputes; and civil and commercial

disputes (including, for example, disputes relating to building works or breach of

contract). The process of mediation is often called as voluntary, although it may be

urged by an agency like the Equal Employment Opportunity Commission (EEOC)

Mediation forms

Mediation can begin, unfold or terminate in a number of fashions: It can be

initiated by one party’s proposal, a mutual agreement, the judge’s suggestion to the

parties, the court’s reference to a mediation process in the course of litigation,

whereas on the other side it can be terminated by one or both parties in mutual

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agreement, or even the mediator’s conclusion, that the mediation process has failed to

deliver the expected results. I will focus on two ways of introducing mediation, i.e. by

means of a private agreement, or through court-annexed mediation.

a) Mediation through private agreement

An agreement between the parties to mediate is the rule in mediation proceedings.

There are no binding requirements as to the time framework: Parties are free to agree

before any dispute arises. They can also suspend judicial proceedings, in order to

attempt a conciliatory resolution with the assistance of a mediator.

b) Court-annexed mediation

A court-annexed scheme presupposes the active participation of the presiding

judge. Usually, the case is brought before the court, and in the course of those

proceedings, the judge is proposing the parties to submit their case to mediation.

Upon confirmation stated by the parties, the judge adjourns the hearing and orders

suspension of judicial proceedings. The court has no authority to appoint a

mediator, unless the parties ask for judicial mediation. The prospects are then

twofold: If mediation succeeds, judicial proceedings will be terminated, and a

special procedure for sealing the mediation agreement with enforceability could

follow; if mediation fails, proceedings will resume before the court seized with the

dispute in question. The case will then be tried according to Civil Procedure rules,

and a court decision will be rendered6.

The differences between mediation and other ADR models

Mediation differs from other ADR models, meaning the procedures for

settling disputes by means other than litigation; e.g., by Arbitration, or mini trials.

6 See Anthimos A., (2012-2013) Handbook on Mediation, International Hellenic University, p.15

8

Mediation and arbitration are two different Alternative Dispute Resolution models, in

spite of the fact that their point of departure is a common one. Specifically, in

arbitration process the third party (arbitrator) acts much like a judge but in an out-of-

court less formal setting and he/she does not actively participate in the discussion. The

most serious difference between mediation and arbitration is that in arbitration the

arbitrator hears evidence and makes a decision. Arbitration is like the court process as

parties still provide testimony and give evidence similar to a trial but it is usually less

formal. In mediation, the process is a negotiation with the assistance of a neutral third

party. The parties do not reach a resolution unless all sides agree. The arbitrator

renders a decision that is generally binding and almost always cannot be

appealed. The process is more formal than mediation, although it is still usually less

formal than litigation. Another difference between mediation and arbitration is in the

ability of the parties to withdraw from the process. In mediation proceedings, neither

party is required to complete the process or find a resolution because mediation

agreements are not legally binding and either party can withdraw at any time from the

proceedings. In the contrary, parties involved in arbitration, can withdraw only before

a final decision is made and only if no arbitration clause has been signed. After a final

and binding decision no withdrawal is permitted.

Benefits and drawbacks of mediation

One of the greatest benefits of mediation is that it allows people to resolve the

charge in a friendly way and in ways that meet their own unique needs. The parties

avoid spending too much time in courts and huge amounts of money to lawyers and

litigation proceedings. Mediation is a fair and efficient process and it can help the

parties to avoid a lengthy investigation and litigation. Another benefit of mediation is

confidentiality. While court hearings are public, mediation remains strictly

confidential. No one but the parties to the dispute and the mediator(s) know what

happened. Mediation increases the control the parties have over the resolution. The

parties are free to make changes or decide the result over their dispute and have the

total control, instead of court cases where a judge plays the dominant role over the

case and its conclusion. Compliance with the mediated agreement is usually high

because the result is attained by the parties working together and is mutually

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agreeable, thus the costs are reduced. Last but not least, the mediator is a well-trained

person and has experience in order to face and solve serious situations, guiding the

parties through the process and broadening the range of possible solutions.

However, apart from the benefits mediation, as an alternative process for the

parties, may have undesirable effects. It does not always result in a settlement

agreement. Parties might spend their time and money in mediation only to find that

they must have their case settled for them by a court. Further, if mediation fails, much

of a party’s “ammunition” might have already been exposed to the opposing party,

thereby becoming far less useful in the ensuing trial or lead to the ruin of his

reputation. Mediation lacks the procedural and constitutional protections guaranteed

by the federal and state courts. The lack of formality in mediation could be for this

reason either a benefit or a detriment.. Many discrimination cases, among others, are

brought with the intention of not only securing satisfaction for the named plaintiff, but

also with the hope of setting a new legal precedent which will have a broader social

impact. These cases are only “successful” if a high court (usually the United States

Supreme Court) hands down a favorable decision on the main issue7. Mediation is

therefore not beneficial for such cases.

The third parties who deal with mediation are usually well-trained neutral

parties, called ‘mediators’, the meaning of whom I will analyze in the next paragraph.

Mediators

Mediator, as it was mentioned above, is a neutral third party who

communicates, gives advice and tries to accomplish a result and bring the parties to an

agreement. Mediators must be well-trained, gain the appropriate skills, tools, and

credentials so as to resolve conflicts. Mediators are not advocates for either party.

They are independent people committed to the process of problem resolution.

Mediators work with people to find solutions to the problem that will work for both

parties. The mediator’s roles can be several. Some of them are the following:

7See Advantages and Disadvantages of Mediation, http://nationalparalegal.edu

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Convener

The mediator may help so as the parties to contact and for this reason he/shemay

arrange an introductory meeting.

Educator

The mediator educates the parties about the mediation process, other conflict

resolution alternatives, issues that are typically addressed, options and principles that

may be considered, research, court standards, etc.

Communication Facilitator

The mediator seeks to ensure that each party is fully heard in the mediation process.

Translator

When necessary, the mediator can help by rephrasing or reframing communications

so that they are better understood and received.

Questioner

The mediator probes issues and confirms understandings to ensure that the

participants and the mediator have a full understanding.

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Process Advisor

The mediator comes to be trusted to suggest procedures for making progress in

mediation discussions, which may include meetings, consultation with outside legal

counsel and consultation with substantive experts.

Devil’s advocate

The mediator may exercise his or her discretion to play devil's advocate with one or

both parties as to the practicality of solutions they are considering or the extent to

which certain options are consistent with participants' stated goals, interests and

positive intentions.

Catalyst

By offering options for considerations, stimulating new perspectives and offering

reference points for consideration, mediator serves as a stimulant for the parties

reaching agreement.

Responsible Detail Person

The mediator manages and keeps track of all necessary information, writes up the

parties' agreement, and may assist the parties to implement their agreement8.

As regards who can be a mediator the legislations differ from State to State.

For example in Greece, according to the Greek Law, a mediator can be a third party

who is asked to conduct a mediation proceeding in an effective and impartial way,

regardless of the procedure by which he/she was appointed. In particular, in national

disputes the mediator can only be a lawyer accredited by the Greek Accreditation

Committee. On the contrary, in cross-border disputes, according to directive

8See Roles of the Mediator,http://mediate.com

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52/2008/EC, it is not obligatory for the mediator to be a lawyer. It has been suggested

but not yet become effective, that in exceptional cases, where expertise knowledge is

required, professionals that do not belong in the field of Law may act as mediators.

For instance the mediator’s profession can ask doctors, psychologists, civil engineers

or judges. While performing this role, the mediator may be subject to court

regulations or various codes of ethics9.

9The Greek Mediator, Mediation in Greece. Current Trends, Future opportunities, http://www.gmi-

mediation.com

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HISTORY BACKGROUND

Despite the general view that mediation is a new and modern alternative

method to longstanding traditional dispute resolution mechanisms, it should not be

forgotten that across myriad cultures forms of mediation have been present

historically for centuries10

. Indeed ‘‘mediation is a folk concept which existed prior to

the evolution of state law, legal system and lawyer-litigators.’’11

Research on

mediation has increased dramatically in the past ten years, which is probably a

reflection of the rapid proliferation of mediation in practice. Mediation has long

been an important part of industrial relations and international negotiation. One

of the earliest recorded mediations occurred more than four thousand years ago

in Mesopotamia when a Sumarian ruler helped avert a war and develop an

agreement in a dispute over land (Kramer 1963). Another example of practicing

mediation forms could be in pre-capitalist tribal societies in ancient Greek cultures as

well as in mediaeval England12

.

Historically and presently mediation has been used all over the world

including the following countries:

China and Asia, where Confucius believed that the best way to resolve a dispute was

through moral persuasion and agreement rather than coercion. Peace and

understanding were central to his philosophy. Today in the People's Republic of

China there is still an emphasis on conciliation, self-determination, and mediation to

be used in the resolution of disputes.

Japan, where there is a relative absence of lawyers, probably because of their rich

history of mediation. The leader of the village was expected to help people resolve

their disputes. There are also many procedural barriers to formal litigation and this

may contribute to an emphasis on the informal procedures of mediation. Today

mediation is part of the business culture, where intermediaries are introducers, shokai-

sha and mediators chukai-sha to smooth business relationships.

10

See generally Roebuck (2007) 11

Mulcahy (2002), p. 205 12

Abel 1983 cited in Roebuck (2007), p. 105; Levinson (1994)

14

Africa, where any disputant may call for an informal neighborhood assembly called a

moot. A respected member of the community serves as a mediator to help parties

resolve conflicts cooperatively. The success of this form may be successful due to the

extended kinship patterns within many African communities.

Islam, where slamic culture has a strong tradition of mediation and conciliation as

preferred approaches as seen in the use of quadis, specialized go-betweens who

attempt to preserve social harmony by reaching an agreed upon solution to a dispute.

Western, Judeo-Christian Culture where there is a long tradition of mediation.

Churches have been used as places of sanctuary and clergy often acted as mediators

between criminals and authorities. In the Middle Ages, Christian clergy were called

upon to mediate disputes between families and even in diplomatic disputes.

Rabbinical courts used traditions and the Torah to settle disputes.

United States where there is along history of practicing both mediation and

arbitration. Much of the early U.S. model of mediation was based on the work of the

Quakers. In New York City the Jewish community established its own mediation

forum. Chinese immigrants established the Chinese Benevolent Society to resolve

disputes within the family and within the community by mediation.

In earlier history, in United Kingdom mediation became institutionalized in

the twentieth century in the secular arena where it began to be recognized as having a

role in and of itself. Department of Labor (established in 1913) appointing a panel

called the "commissioners of conciliation" to deal with labor/management disputes.

These commissioners became the U.S. Conciliation Service and in 1947 that entity

became the Federal Mediation and Conciliation Service. Some of the early writing in

ADR drew on the experiences of labor and industrial dispute resolution and adapted it

to the resolution of interpersonal conflict13

.

Since the earlier years, the USA has experienced a gradual development of the

use of extra-judicial forms of dispute resolution such as mediation14

. It should also be

mentioned that efforts for mediatory processes have historically been embedded

13

Source www.MediationADR.net 14

An excellent review can be found in Auerbach (1983), Chap. 1

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within the legal systems of many civil law countries including much of continental

Europe mainly through the role of the ‘settlement judge’ (including the Juge de Paix

in France and Vrederechters in the Netherlands)

In modern times, the ADR movement can be largely traced back to its

emergence in the 1970s, USA deriving primarily from the National Conference on the

Causes of Popular Dissatisfaction with Administration of Justice (the ‘Pound

Conference’) in Minnesota in 1976 in which Professor Frank Sander is credited with

first coining the phrase,’ Alternative Dispute Resoluti.’’15

Thus, mediation is often

characterized as Anglo-American development; however, in the Pound Conference

era parallel debates regarding the establishment of alternative forms of dispute

resolution were concurrently taking place in Europe, such as those promoted by the

Florence Access to Justice Project16

. Unlike its European equivalents, however, the

Pound conference had a major and almost immediate impact on expediting the

process of mediation in its native land17

.

Mediation came into play with the advent of international treaties. Since there

was no existing “world law”, groups like the League of Nations or the United Nations

incorporated provisions for mediation into their rules, or what we now

call international law.

In some senses, it can be said that despite its ‘alternative’ billing, the modern

ADR movement was something that lawyers, peddlers of traditional dispute

resolution, largely constructed themselves18

.While the father of the term ‘ADR’,

Professor Frank Sander, is an academic lawyer, more importantly perhaps, the

pioneering ADR movement was propelled by the significant support lent to it by a

spate of leading figures prominent in the US legal profession of the time, including

most prominently Chief Justice Warren Burger19

.A consequence of linking ADR’s

role with the fate of litigation allied to the involvement of lawyers and judges in the

movement was an intertwining of the alternative with the traditional. ADR thus

became to be generally promoted not on its own footing but rather as an appropriate

diversion from the court generally for cases of perceived lesser import. Despite the

15

Sander (1979). The theoretical origins of modern mediation can be charted back to the works of

Lon Fuller and other eminent legal jurists. For a stimulating summary of mediation’s theoretical

nascence, see Menkel-Meadow (2000) 16

Cappelletti (1978) 17

Clark Bryan, Lawyers and Mediation. Springer, New York, NY, USA, 2012, p.2 18

Roberts and Palmer (2005), p. 66 19

Clark Bryan, Lawyers and Mediation. Springer, New York, NY, USA, 2012, p.2

16

enthusiasm of these grassroots pioneers, many of their programmes quickly fell into

abeyance and those that survived were often subsumed into traditional justice

systems. While some community programmes appeared to enjoy a measure of

‘success’20

willing participants were generally a scant commodity. As Nancy Welsh

has noted “[u]nfortunately, a relatively small number of disputants actually chose to

take advantage of the new process. Most disputants continued to turn to the courts for

resolution of their disputes. By the mid-1980’s,despite [community] mediation’s

genesis out of a marked dissatisfaction with the judicial process, many grass roots

mediation activists were advocating for the institutionalization of mediation within the

courts because that is where parties and their disputes could be found.”21

It is of course

true that many such early initiatives were poorly resourced and lacked the oxygen of

publicity to attract disputants. Equally, there is some evidence to suggest that would

be participants in general simply placed more value in the potential for rights

vindication through the courts rather than seeking harmonious, community based

resolution22

. In any case, the demarcation between efficiency proponent’s schemes

and those of quality proponents began to fall away as binds began to form between

the courts and mediation programmes23

.

Thus, the modern development of mediation is characterized by the meeting of

two disparate groups, with two largely separate agendas. Evidence suggests that

across the globe in the modern context, mediation tends not to develop well without

some form of institutionalization or embedding within traditional legal processes.

Such relocating within traditional dispute resolution sites has led to the development

of models of mediation which may implicate rather than eschew the role of the

lawyer24

.

To conclude with, globally, the modern mediation movement has at least in

part been instigated and propelled by lawyers. Progress has clearly been uneven both

within and across different jurisdictions. In the historical development of mediation,

20

In terms of settlements produced and user satisfaction -see Welsh2001, p. 20 21

Welsh (2001), p. 20 (internal citations omitted) 22

See generally Engle Merry (1990) 23

In terms of why many early schemes failed, in their review of the early ‘Community Boards’

experiment in San Francisco, Merry and Milner (1995) found that the reality of a ‘community’

upon which shared values could provide a basis for settlements, did not in fact exist in modern life

and was no more than a romantic reflection of an indigenous community that no longer existed.

The case-load was low and had little effect on community empowerment and settlements reached

tended to reflect individual interests of disputants rather than any shared community norms. 24

Clark Bryan, Lawyers and Mediation. Springer, New York, NY, USA, 2012, p.5

17

however, the pursuit of efficiencies and diversion from traditional courts were clearly

significant drivers for reform from, amongst others, the legal profession.

Legislation

In the European Union “Directive 2008/52/EC of the European Parliament and

of the Council on Certain Aspects of Mediation in Civil and Commercial Matters”

provides a framework for cross-border mediation. The Mediation Directive dates

from21 May 2008, has been in force since 13 June 2008 and requires the European

Member States (except Denmark) to implement the necessary laws, regulations and

administrative provisions by20 May 2011 at the latest. A strong regulatory impetus

has emanated from the Mediation Directive. Many Member States reacted by not only

regulating cross-border mediations as required, but extended their law reforms to

cover purely national mediations as well. Member States that have come forward with

a comprehensive reform of mediation law since June 2008, when the Mediation

Directive came into force, are, for example France, Germany, Greece, Italy and Spain.

The development towards more intensive regulation of mediation seems to follow the

example in the USA, the pioneer jurisdiction of mediation, which has seen a

regulatory increase over the years.

Already, there are many efforts underway to regulate the mediation

profession, but much of this is a work-in-progress awaiting further empirical study.

The regulatory approaches as regards mediation and as far as who can be a mediator,

(lawyers and other professions) differ substantially in Europe and beyond. For

example, in Greece Law 3898/2010 on mediation transposes the Directive

2008/52/EC. The Law applies to all mediations, cross-border and internal. According

to the Greek law the mediator must be a lawyer accredited as mediator by a competent

Accreditation Body for domestic mediations.

Another significant example relating the mediation and its application was

just recently, in Italy. On September 20, 2013, a new regulation came into effect,

opting for mandatory mediation. This new regulation had a lot of Protestants,

especially from the legal world. Now the law has been rewritten, with significant

modifications. In this case lawyers also enjoy preferential treatment as mediators.

18

While it is necessary to attend a course and pass a professional examination to achieve

an accredited mediator qualification, lawyers are mediators “by right” (but they will

be required to receive training, and limit themselves to mediation of cases in which

they have specific legal competence, in compliance with the provisions of Article 55

bis of the lawyers’ code of ethics)25

.

Another case of different legislation is that of United States where, the laws

governing mediation vary by state. Some states have clear expectations for

certification, ethical standards and confidentiality. Some also exempt mediators from

testifying in cases they've worked on. However, such laws only cover activity within

the court system. Community and commercial mediators practicing outside the court

system may not have such legal protections. State laws regarding lawyers may differ

widely from those that cover mediators.

25Morek R., (2013) Mandatory Mediation in Italy – Reloaded http://kluwermediationblog.com

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LAWYERS' INVOLVEMENT IN MEDIATION

A highly important matter which I will focus on this chapter and it will be the

main topic of my dissertation as I mentioned above, is the mix of lawyers with

mediation. It will also be an exploration of the motives of lawyers who have seen fit

to engage with the process as well as the advantages and disadvantages that this

involvement may have.

Among the more hotly debated issues concerning appropriate qualifications

for mediators is the question as to whether it is preferable for mediators to also be

lawyers. In many states, a law degree is a prerequisite for being listed as a court

approved mediator. While most jurisdictions permit disputants to choose any

mediator, non-attorney mediators are not always considered by court referred

disputants. This is because, for most people, it is just easier to pick a name from the

court approved list than to do their own research. The rationale for requiring a law

degree and legal experience rests on two assumptions. First it is assumed that

mediation is a natural extension of legal training and that it is a skill readily acquired

by attorneys. The second is that because most disputes involve complex legal matters,

legal experience is necessary to bring these matters to a satisfactory conclusion and

guarantee justice, especially in cases where one or more parties are unrepresented.

Because attorneys are the traditional gatekeepers of the justice system, it is important

to examine these assumptions closely.

In order to determine the influence of attorneys on the mediation process, two

researchers compared divorce mediation in Georgia with that in other parts of the U.S.

In Georgia, divorce mediation enjoys nearly universal acceptance by judges and

lawyers. Mediation and settlement tends to occur more frequently in Georgia because

there is a greater emphasis on outcome (agreement) than on process concerns, such as

the depth to which the dispute is resolved and disputant satisfaction. So a well-

satisfying majority of some researchers reached the conclusion that the vast majority

of divorce mediators in Georgia are attorneys and a great many are simultaneously

engaged in the practice of law26

.

26

Bohmer, C., & Ray, M.L. (1993). Regression to the mean: What happens when lawyers are divorce

mediators.Mediation Quarterly, 11(2), 109-122.

20

Lawyer mediators tend to stress legal knowledge and skills, such as drawing

out the facts of the case, analyze, explain and clarify them to their clients and

generally help them to find the most suitable solution for them through their

mentoring. An advocator is the most special one in legal matters; he knows how to

protect his client’s interests in a court or out of it, better than, for instance a doctor or

a civil engineer. A lawyer is most of the times experienced and prepared from his law

school for every civil, criminal or administrative case it can be occurred and of course

he/she has the ability of negotiation, of competition and facing the problems and

conflicts between the parties.

However, attorneys still need extensive training in mediation after law school.

In other words, mediation is not a natural extension of the practice of law, because

mediation permits a broader definition of conflict as well as a more complete

approach to its resolution. Because attorneys are schooled in, and acculturated to, the

adversarial approach, it is very difficult (but certainly not impossible) for them to be

equally accomplished in a more collaborative approach to settling disputes. There is

no evidence to suggest that simply because a conflict may involve issues of law, that

legal skills are more relevant to facilitating its resolution than human relations and

negotiation skills. Thus, it is unethical for mediators to give legal advice in mediation.

If parties need legal or any other kind of advice, they are expected to obtain it outside

of mediation. However, having a legal background can be advantageous in many

mediation situations. Offering disputants this kind of legal information can be quite

helpful, but it should also be remembered that it is not necessary to be an attorney to

provide legal information. One should also remember that being an information

provider is only a small part of what mediators do.

So, how much substantive knowledge a mediator needs is difficult to specify.

Complete ignorance of the legal context might cause disputants to unknowingly enter

into agreements which a court might consider inappropriate or illegal. At the other

extreme, too much substantive expertise can put the mediator's neutrality at risk by

biasing them toward standard solutions and diverting their attention from underlying

interests and needs. However, if the parties desire a case evaluation or a prediction as

to how a court would rule on a particular issue, then the neutral would need a high

21

degree of substantive knowledge and would probably need to be an attorney27

. Thus,

while there may be certain advantages to having a legal background, there may also

be some disadvantages which should be kept in mind when choosing a mediator for

each different case.

Simply put, lawyers may naturally see mediation as a legitimate commercial

opportunity, falling within their existing sphere of practice and expertise, to offer

services in a new and growing market.

Finally, I definitely could not omit to refer the high lawyer’s resistance to

mediation because of their own personal reasons. It is a pertinent question to ask why

this is the case. A whole raft of different factors may be relevant to lawyers’

resistance to mediation. Some reasons may appear legitimate or altruistic in their

nature, while others seem less acceptable and perhaps, it may be suspected, even

emanate from somewhat dishonorable motives on the part of lawyers. Reasons for

objections to mediation, which may, prima facieat least, appear more legitimate,

include: concerns about the lack of quality assurance in mediation services;

unregulated practice; simple lack of client demand; fears over disingenuous use of the

process by opponents and arguments based around the efficiency of mediation (e.g.

how quick or cheap it actually is) relative to other forms of dispute resolution28

.

Lawyers as gatekeepers of mediation

It is often remarked, that lawyers are ‘gatekeepers’ to mediation’s

development. Given this fact as a true, the argument follows that it is crucial that if

mediation is to flourish then lawyers must be brought on-side with the process. While

lawyers are doubtless often instrumental in legitimizing mediation in the eyes of their

clients, and empirical studies seem to bear out this assertion in many contexts, the

influence of lawyers over their clients in the course of a dispute clearly varies

considerably. In fact there are undisputable assertions that lawyers act as gatekeepers

27Currie C., (2000) Should A Mediator Also Be An Attorney? http://mediate.com

28

Clark Bryan, Lawyers and Mediation. Springer, New York, NY, USA, 2012, p.30

22

in the way that they protect their clients from any barriers they face and what might be

done to better sell the process to them. Indeed, as noted above, numerous studies have

suggested that lawyers have become increasingly receptive to mediation as a form of

dispute resolution, at least in the abstract.

In order for our society to reap the benefits of mediation while containing its

risks, every lawyer must come to understand mediation and a significant number must

develop an ability and willingness to mediate a variety of matters that are currently

pushed through the adversary mill29

.

The idea that that lawyers serve as important intermediaries between clients and the

legal system is far from novel. Sociologist of law have long studied the ways in which

attorneys help their clients understand legal rules and relate them to individual

problems, operate legal processes and work with legal institutions30

.

As part of this scholarly tradition, in recent years, greater attention has been

given also to the role that attorneys play in mediation. In the following paragraph I try

to examine the crucial role that attorneys play before during and after the process

when a case will be referred to mediation.

Role of lawyers in mediation and how they affect the process

A lawyer might assume various roles in mediation process. As I referred

earlier in many legislations a lawyer may be a mediator or he/she can be the legal

counsel of the party(ies). This latter role I will try to analyze for the specific time

periods of the mediation procedure.

Before Mediation begins

The attorney assists the parties in making informed decisions about the mediation

process before it starts and with this way the lawyer helps the parties to take

29

Leonard L. Riskin, Mediation and Lawyers,43 OHIO ST. L. J. 29,30 (1982) 30

Austin Sarat& William L.Felstiner, Law and Strategy in the Divorce Lawyer’s Office, 20 LAW &

SOC’Y REV.93,93 (1986)

23

responsibility for resolving the dispute, consistent with the principles of mediation.

The lawyer also explains to the party the nature of the mediation process, what to expect

during mediation, the relevant law governing the mediation process, and how the

mediation process complements the court procedures. Finally, he/she helps the party(ies)

make an informed choice of a mediator based upon such factors as the nature of the

specific case, the background and experience of the mediator, and the potential fees

involved.

The lawyer may want to assist the parties in determining whether timing is a

factor in choosing mediation. For example, the lawyer may recommend mediation at

the beginning of the case in order to explore settlement before positions become

entrenched, or may recommend that mediation be deferred until completion of all or

part of the discovery process.

Another role the attorney may play before the beginning of the mediation

process could be the advisory one. He/she advises the parties on the substantive law

relevant to the case. This enables the party to understand the range ofoutcomes that

are possible if the case is litigated and to formulate a range of acceptable outcomes for

the mediation process. For example, in a personal injury case, the lawyer may advise

the party on the range of outcomes regarding liability, the range of possibilities for a

money judgment, and such options as structured settlements. Advice that helps the

party understand that there may be more than one solution which meets that party's

needs helps the party enter mediation willing to consider various options for

settlement.

During mediation

As before beginning the process, the lawyer continues to advise the party on

the substantive law relevant to the case, helping the party understand what

information might be important to share or to learn during the mediation, the options

that might be available, the potential consequences of each option, and the possible

outcomes to anticipate if agreement is not reached through mediation.

Throughout the mediation process the parties are encouraged to take

responsibilities for resolving the dispute. These responsibilities include participating

actively in problem-solving discussions and expressing their point of view with the

24

assistance of a trained neutral mediator. The lawyer's role is to assist the parties in

negotiating for themselves, bearing in mind the non-adversarial nature of mediation.

The lawyer guides the party in negotiating by encouraging the parties to express

thoughts and feelings, helping the party define interests, and helping the party gather

and examine all the consequences. In addition, he or she can guide the parties through

settlement discussions whether the lawyer attends the mediation sessions or not. The

lawyer may consult with and advise the party before and after the session(s). The

lawyer might also advise the party(ies) of when it would be wise to request a break in

mediation for the opportunity to consult the lawyer for additional information and

advice. In some cases, the party(ies) and the lawyer may arrange for the lawyer to be

available by telephone for consultation while the mediation is being conducted. More

generally, the lawyer manages the legal process for the party while mediation is being

conducted, keeping the party informed of important dates, responding to and filing

necessary pleadings, and conducting discovery.

The role of a lawyer in mediation differs and from State to State. For example

in Greece, the law 3898/2010 defines that the lawyer’s role in mediation process will

be twofold. From one side he or she will be the mediator and from the other he/she

will be the legal counsel.

To sum up, the lawyer in mediation acquires very significant roles such as the

informative, the advisory and the guiding one as well as one of the most experienced

and well-trained person in legal matters so as to help the parties to reach to a

satisfying solution for them. He is not a judge or an investigator as it happens in

adversarial cases and in courts but he offers his assistance as third neutral person

away from the strict and limited legal background that court case very often follow.

So lawyers in this mediation case should have a more flexible and negotiating

character in order to create a calm and harmonic atmosphere and face the dispute

successfully. He/she should have communication and understanding skills and surely

not cruel and absolute behavior towards his clients or to the other side parties just like

he could be in a trial for policy reasons. Finally his goal should be the conciliation and

improvement of the relations and of course the avoidance of any other conflicts

between the parties. After all, his/her work is not a battle for him/her to win but a

problem to be solved!

25

After Mediation

The lawyer assists the party in reviewing the terms of any mediated

agreement, testing the party's understanding of the terms, and in some cases,

preparing formal agreements. If no agreement or only partial agreement has been

reached, the lawyer assists the party in continuing the process, which eventually will

dispose of the entire case through trial or further settlement efforts31

.

Effects

The next question which I will attempt to answer is how the presence of

lawyers affects the process of mediation.

In a study of workplace disputes handled by a professional mediator in

Québec, Canada, mediations conducted with attorneys present were just as likely to be

settled as were those without attorneys present. More specifically: the presence of

attorneys didn't significantly slow down the mediation process, affect how fair parties

viewed the process to be, or alter how satisfied they were with the agreement.

A couple of difference did emerge. First, when attorneys were present, parties viewed

their mediators to be somewhat less useful. Second, parties were less likely to

reconcile with each other when attorneys were present. Overall, though, the study

finds some evidence that lawyers, contrary to their reputation, do not obstruct

agreement in mediation32

.

So we can detect two aspects of the participation of an attorney in mediation

process. First, the lawyer can play a significant and very useful role during the process

with no much influence for the parties’ will and motives. The other side is that the

attorneys influence in a harmful way parties’ behavior as the last ones cannot decide

31

Geetha R., Role of attorneys in mediation process, http://www.americanbar.org

32Pon S., (2012) How Lawyers Affect Mediation http://www.pon.harvard.edu

26

for themselves and as a consequence, they follow their attorneys’ view and finally

they cannot easily reconcile and find a solution for their initial dispute.

Mistakes of lawyers during the mediation process

Effective representation of clients in mediation requires the same level of preparation,

diligence and assertiveness as is required in presenting a jury trial. The outcome of a

mediation session depends, to a large degree, on the performance of counsel.

Failing to communicate willingness and ability to try the case.

In the vast majority of instances, the parties on both sides are better off settling

then taking their chances before a judge, jury or arbitrator. On the other hand, the key

to achieve a reasonable settlement for a client is to make clear that counsel is ready,

willing and able to try the case. Unfortunately, some lawyers have the reputation that

they will settle any case, on the courthouse steps if necessary. Opponents know this,

and act accordingly, even in mediation.

Lawyers should cultivate a reputation for being willing to go to trial when

necessary. Such a reputation cannot be credibly created during the course of the

mediation of a single case, but rather requires diligent preparation and effective

presentation of adversary proceedings over the course of a career.

Attorneys and parties should participate meaningfully in the mediator’s effort

to explore weaknesses as well as strengths of a case. On the other hand, after full

exploration of a case and careful consideration of the settlement positions of the other

side, there are indeed cases in which it is appropriate to walk out of mediation.

Making aggressive "opening statements."

Most lawyer-mediators in business or personal injury cases conduct a short

opening meeting with all sides present. After explaining the mediation process and

confidentiality, most mediators invite comments from each side. The trend is away

27

from using this opportunity to present aggressive or inflammatory statements of the

case.

It is often best to say nothing or perhaps to state that while one’s client feels

strongly about the correctness of his or her position, the client is here to bargain in

good faith, or words to the effect. We can leave it to the neutral mediator, in private

caucus, to discuss problems with the opponent about its case. The message is often

more effective and clear when delivered through this means. On the other hand, of

course, we should be prepared for similar treatment by the mediator during private

caucus with one’s own client.

Mediating without necessary parties.

There are often parties that should be represented at a mediation, who may not be

formally named in a lawsuit.

Mediating with persons with insufficient authority.

One of the biggest frustrations for lawyers, parties and mediators is to spend long

hours in achieving agreement in principle, only to learn for the first time that the

proposed settlement needs to be presented to a company officer or committee for

approval and ratification. The mediation process is most effective when the mediator

has the opportunity to talk, face-to-face, with the decision-maker for each party.

Mediating too early or too late in the case.

Every case is different, and it is difficult to state hard and fast rules as to when

mediation should be considered. It sometimes makes sense to attempt immediate

mediation of exigent problems, particularly where the parties have an ongoing

relationship that they desire to protect. On the other hand, some level of preparation,

investigation and discovery is often necessary to enable counsel to render a reasonable

evaluation of a client’s position. Sometimes mediation on the eve of trial is

appropriate, but often lawyers do their clients a disservice, financially and

emotionally, by waiting that long.

28

Failing to adequately prepare the case.

It is a rare mediation that requires the same amount of preparation as a jury trial, but

counsel should not underestimate the work necessary to do the job right. It may not be

appropriate to look under every rock, but the lawyer in mediation should know what

rocks are out there. Mediation is nothing other than an accelerated, facilitated

negotiation. As in all negotiations, knowledge is power.

Failing to adequately prepare the client.

Experienced litigators never take their clients to deposition or trial without thorough

preparation. The same should go for mediation.

The client should understand ahead of time the general nature of the process,

including the rules of privilege and confidentiality in mediation, and in the non-

binding nature of the process. Even more importantly, the client should have the

benefit before the mediation of his or her lawyer’s evaluation of the case, and

potential pitfalls and weaknesses. Clients appreciate aggressiveness and diligence on

their behalf, but also respect honesty and candor from their lawyers33

.

33

Source: article originally appeared in the Oregon State Bar Bulletin (June 1999) October 2000 by

Richard G. Spier

29

Parties’ participation in the process

The choice of whether the lawyer attends the session(s), as well as the extent

of participation by the lawyer, ultimately belongs to the party. The party makes his or

her choice after discussion with the lawyer and consideration of the lawyer's advice.

Because the success of the mediation process depends, among other things, upon each

party making informed decisions in resolving the dispute, the lawyer's task at this

stage is to enable the party to make an informed decision about these issues.

A party suffers no prejudice if he or she chooses to attend mediation without

his or her lawyer present. Dispute resolution proceedings are not on the record. Rules

of evidence do not apply. Mediators do not make any findings of fact and do not

impose any decisions upon the parties. While mediators may encourage and assist the

parties in resolving their dispute, they are prohibited from compelling or coercing the

parties into a settlement. Va. Code § 8.01-576.9. It should be mentioned that even

when the lawyer is not present at the mediation session(s), a party may consult with

his or her lawyer before and after the mediation session(s), or by telephone during

breaks inthe mediation session(s). In addition, mediators are required to encourage

each party to review any mediated agreement with his or her lawyer prior to signing

it. Va. Code § 8.01-576.12.

Since nothing about the mediation process itself suggests that a lawyer must

attend the mediation session(s), the decision depends primarily upon the party's needs

within the context of the mediation process. While some people attempt to generalize

the role of lawyers according to case type (e.g., "You need a lawyer in personal injury

mediation, but not in a domestic relations mediation."), it is the needs of the parties

(such as the information, resources, and real and perceived power of each), that drive

the decision to have a lawyer present in mediation, not the case type. However, the

fundamental consideration is whether the party is capable of participating effectively

in the process without the lawyer's presence. This consideration encompasses two

distinct levels of inquiry: whether a party suffers from any personal impediments to

effective communication, and whether the nature of the relationship between the

parties impedes effective communication. If the party can participate effectively in the

mediation process without his or her lawyer present, the lawyer needs not to attend

the mediation. If circumstances are such that the party cannot participate effectively in

30

the process without the presence of the lawyer, despite the guidance of the mediator, it

may be in the party's best interests for his or her lawyer to attend the mediation

session(s).

Any significant impediment to a party's ability to communicate, to understand,

and to make informed decisions should be considered in deciding whether it would be

appropriate for the party's lawyer to accompany the party to the mediation session(s).

For example, mediation would be deemed inappropriate for a party who is drug or

alcohol dependent and actively under the influence.

Because mediation is a voluntary process in which the parties take responsibility for

and create their own solutions, parties are more likely to abide by the terms of any

agreement reached. Thus, it is rarely necessary to take any action to enforce a

mediated agreement. If and when it seems necessary, the lawyer assists the party in

enforcing the terms of the agreement as well as any other written in the contract34

.

As a result, I could note that the relationship between lawyers as legal

counsels and the parties is a relationship interactive and mutually assisted. Attorneys

should play an effective and significant role so as to offer their services to the parties

and solve the dispute situation or any other problems may arise.

34

Geetha R.,Role of attorneys in mediation process, http://www.americanbar.org, P.3-7

31

MEDIATION IN GREECE AND GREEK MEDIATORS

In the following chapter I am going to deal with the mediation process in my country,

Greece and what the Greek legislation orders about lawyers in mediation.

The Framework of Mediation in Greece

The Greek Law on mediation 3898/2010 has been voted by the Greek

Parliament December 2010. It concerns civil and commercial disputes and it is

intended to adapt our National Legislation to EU Mediation Directive 52/2008/EC.

The above mentioned Greek Law applies to any mediation regarding civil and

commercial disputes which take place in Greece regardless to whether a claim is a

cross-border one or not. According to the Greek Law “Mediation is a structured

process, whereby two or more parties attempt to resolve a dispute on a voluntary

basis, with a view to reaching an agreement on the settlement of with the assistance of

a mediator. The Greek Law on mediation also states that prior to the mediation

process, the parties undertake in writing the obligation to respect the confidentiality of

the procedure. The statements made or the information acquired during mediation

proceedings cannot subsequently be used in court otherwise the mediation will be

proved unsuccessful.

The agreement accruing out of a mediation process is called “agreement of

settlement of the dispute” must be recorded and drafted by the assigned mediator.

This settlement shall then be submitted to the Member Court of First Instance.

Following this action the settlement agreement becomes an enforceable title and is

secured even in case of only one of the parties wishing it to become one.

On the contrary, the EU Directory provides that, in order for the agreement to become

an enforceable title, the consent of both parties is in order.

According to the Greek Law, the presence of legal representatives whose main

responsibility is to protect the rights of the two parties is mandatory during the

mediation process. This comes in direct contract to the EU Directive, which does not

enforce the presence of lawyers in the process. Finally, in Greece, the mediator fees

32

are divided equally between the parties, unless they have agreed otherwise, while each

party bears the fees of his lawyer35

.

The Greek Mediator

According to the Greek Law, a mediator can be a third party who is asked to

conduct mediation in an effective and impartial way regardless of the procedure by

which she was appointed.

In national disputes the mediator can only be a lawyer accredited by the Greek

Accreditation Committee. On the contrary, in cross-border disputes, according to

directive 52/2008/EC, it is not obligatory for the mediator to be a lawyer. It has been

suggested but not yet become effective, that in exceptional cases, where expertise

knowledge is required, professionals that do not belong in the field of Law may act as

mediators. While performing this role, the mediator may be subject to court

regulations or various codes of ethics.

The Greek Accreditation Committee intends to draft a Code of Professional

Conduct, which the mediators must respect and conform to.

I could just refer three examples of Greek mediators who also are lawyers:

Zoe Giannopoulou is a lawyer and an Accredited Mediator with ADR Group UK

(Accredited Mediator in Civil & Commercial Mediator Training Programme) where

she is also a member of their International Training Faculty. Zoe is also an Accredited

Mediator by the Greek Ministry of Justice (Law 3898/201).

Elena Koltsaki is a law graduate from the Law School of Aristotle University of

Thessaloniki and she specializes mainly in the field of civil and commercial law and

places great emphasis on alternative dispute resolution processes.

35The Framework of Mediation in Greece, Mediation in Greece. Current Trends, Future opportunities,

http://www.gmi-mediation.com

33

Nana Papadogeorgaki specializes in alternative dispute resolution; she is an

Accredited Mediator (ADR Group, UK) and has completed the Harvard Negotiation

Institute's Mediation Program (Harvard Law School)36

.

As it was mentioned above, this requirement that those wishing to act as

mediators in Greece (for domestic disputes) must also be lawyers (Article 4(c)) comes

in contrast with the lack of such a requirement for mediators in cross-border disputes.

It was to be expected of course, that this difference and would trigger lively

discussions37

. Even before the law was passed, there were complaints about this

monopoly of lawyers in the domestic mediation arena. Some scholars were inclined to

propose the recruitment of judiciary members38

. Others tried to include notaries in the

debate39

. In addition, non-legal professionals have been suggested as mediator, at least

for some cases of special nature,40

bearing in mind the widespread acceptance of

psychologists and communication scientists in the field of family mediation around

the globe41

.

However, the choice made by the Greek legislature, was based on some solid

arguments and anchored in domestic law. For instance, according to Article 46 of the

Greek Lawyer statutes, when dealing with a dispute, a lawyer is ordered to

demonstrate conciliatory skills;42

lawyers also possess, by definition, a vast amount of

experience in managing situations of conflict through their litigation practice43

.

Nevertheless, even if lawyers are arguably the most suitable persons for assuming this

task in Greece, such an absolute regulation as Article 4(c), causes alienating effects,

as well as a form of very unequal treatment, in the professional market.

36Source: GMI-Greek Mediation Institute Synesis, Greek Mediators

37Especially in the reading of the bill before the Parliament: An opinion in favour of the provision was

advanced by Deputy Plevris, while an opposed position was advanced by Deputy Moulopoulos,

Minutes of the Greek Parliament, Session of 9 December 2010, p. 2359 38

See Risos, ‘The institution of mediation – A modern challenge for dispute resolution’ (1 July – 1

August 2007) Δ.Α.Ε. &Ε.Π.Ε. [SA & LTD Companies Bulletin] p. 311 [in Greek], who supported the

recruitment of retired and/or active magistrates. Emphasizing on the drawbacks of this proposal, by

demonstrating the difference in the role of magistrates and mediators; Anthimos, ‘The coming of a

‘new’ institution: Mediation’ (2010) 64 Armenopoulos, p. 481 [in Greek]

39

Risos, ibid, p. 311; Anthimos, ibid, p. 482 40

Risos, ibid, p. 311; Anthimos, ibid, p. 482 41

For a brief elaboration of the counter-arguments, see Anthimos, ibid, p. 483 42

See in detail Kerameus,‘The use of conciliation for dispute settlement’ (1980) StudiaJuridica I 64 43

Anthimos, ibid, p. 481

34

So, leaving aside the question of whether there was any objective to favor the

lawyer’s profession, the most appropriate solution would be to approach the matter on

equal grounds and allow the market to decide who is and who is not a capable

mediator44

.

What happening now and future opportunities

The recognition of the importance of mediation in civil and commercial

disputes and the consequential necessity to train mediators using targeted courses is a

first step on the path of higher specialization and credibility of mediation in Greece as

well as in other countries. The professionalization of mediators will lead to the

solidification of a strong and qualified class of experts. This could create a snowball

effect of continued positive changes in the field of mediation.

Mediation is now used in most areas of legal conflict, with excellent

results. Early roundtables agreed that, due to variations in traditions, mediation

programs are best developed locally, which is why each local jurisdiction may do

things just a little differently from its neighbors. The theory reinforces the basic

belief that, if given the chance, the people involved in a dispute are the best ones to

decide how to resolve it.

In addition, the mediation services have great adaptability and considering

about the future, we would be remiss to not consider the remarkable flexibility of the

mediation process and our ability to adapt mediation to new contexts in new and

creative ways. Meditative dispute resolution is about to take off in part because of the

costs, delay and stresses of litigation; in part because of the risk and controversy over

institutionalized arbitration; in part because of the empowering qualities of mediation

(voluntary, complete decision-making, confidential procedure).

Mediation, as it was mentioned before, is a pretty much flexible, informal and

cost effective process which can be arranged quickly and which aims to achieve a

mutually acceptable or “win” settlement for both parties. So it will be of no surprise

therefore that a large enough number of mediation cases globally, result in successful

settlement. This makes the mediation a very successful and hopeful procedure, which

44

See Anthimos A., (2012-2013) Handbook on Mediation, International Hellenic University, p.29

35

offers an alternative in regular litigation cases. This flexibility of mediation is so

much important in the way that the whole process has a powerful impact on

mediator's style and strategy. Simply put, the shorter the presumed available time for

mediation to be accomplished, the more directive the mediator and mediation program

tend to be (to get the job done). If we have more time, or think about mediation time

in different ways (for example more capably using the internet), we may also find that

we as mediators or more specifically as lawyers-mediators can become less directive

and more facilitative in helping disputants lead their own problem-solving.

In this sense, as it was already mentioned the relationship between lawyers

and mediation is a very complicated and fluid business. Despite its extra-law origins,

in the modern sense mediation can -to some extent-be seen as the birth child of

lawyers, brought into this world at the time of the Pound Conference in the 1070’s

USA. Lawyers’ engagement with mediation and their attitudes, experiences and

responses relative to the process, have since followed generally similar patterns in

most jurisdictions across the common law and civil law divide. In a global sense

many lawyers have moved from ignorance, suspicion and resistance to acceptance and

embracement of mediation. Lawyer infiltration, domination and outright ‘capture’ of

mediation markets have taken place in certain settings. Equally, it is true that many

lawyers remain unconvinced of the merits of mediation either on principled or

practical grounds. Both altruistic and selfish motives doubtless lie behind the lawyer

intransigence that continues to exist towards mediation in all corners of the globe.

Some of those cynical lawyers have nonetheless taken steps to accommodate

mediation but in so doing have failed to cast aside their negative attitudes towards the

process and remained wedded to traditional adversarial practice norms in their

mediation activity. While, sadly most nations share a common trait of limited

embedding of mediation within traditional legal education, current professional

training for lawyers in mediation varies dramatically in different, jurisdictions.

Specialized, professional mediation educational and training programmes range from

short, practical courses, to sophisticated, rigorous programmes that blend theory and

practice. The notion of mediation practice as a ‘bolt-on’ for lawyers remains strong,

particularly in the common law world. This is reflected in the nature of much current

training. Despite in the main being rather less well developed in terms of adoption of

36

mediation, the civil law world can generally be considered ahead of its common law

counterparts in the depth of educational requirements set out for mediation practice45

.

45Clark B. (2012) Lawyers and Mediation. Springer, New York, NY, USA, p.175

37

CONCLUSIONS

Law and society scholar Stewart Macaulay once noted the important role that

lawyers play in advancing legal reforms: ‘‘Lawyers’ own values and interests are

reflected in the way in which they represent clients. As a result, reform laws which

create individual rights are likely to have only symbolic effect unless incentives are

devised to make their vindication in the long range interest of members of the bar.

Moreover, an understanding of the many roles played by lawyers also requires a more

expanded picture of practice...’’46

Macaulay’s words are as relevant today as they were when they were first

written 30 years ago, and seem in place also in the context of the role that attorneys

need to play in order for mediation process to be successful.

It is undoubtedly a serious and not an easy task to define if lawyers are the most

suitable or the only profession which deserves the title of ‘mediator’ or if their

presence is totally necessary as counsels during the process. It has been shown that

each proposal has both advantages and disadvantages. However the most proper

solution should not focus on one particular direction. Instead, the birth of a new

profession should be favored as the optimal solution. Any member of the professions

that are candidates for involving with mediation could become a mediator, upon

certain conditions, such as the most important one, passing a certain period of training

in the mediation procedure. This is the pattern that several countries have opted for,

e.g. Austria (Mediationgesetz), Greece and Germany seems to follow the same path47

.

Whatever the general opinion in Greece or in other countries, the most appropriate

solution should be to approach mediation not as yet another panacea for curing the

ubiquitous shortcomings of the systems, but ideally as an institution with its own

values and advantages48

. The aim should be to make use of it as a supplement to

‘classic’ dispute resolution,49

and most importantly, to do so in the areas where civil

and commercial litigation have proved to be inefficient. The new face of Justice must

be a more human and conciliatory one, so as to reach the desirable goal. Citizens and

46

Macaulay, supra note 144, at 115 47

See Hartung / Wendenburg: Die interprofessionelle Mediationskanzlei - Zusammenarbeit von

Anwaltsmediatoren und nichtanwaltlichen Mediatoren, NJW 2009, p. 1551 et seq 48

This is the perception embedded in the directive, which was already recorded in the Commissions’

proposal, see COM (2004) 718, p. 4, under 1.1.4 49

Austria is the best example in this aspect: Despite the country’s very good record in the delivery of

civil Justice, Austria was the pioneer in the EU space, passing a law on mediation already in 2003

38

lawyers alike must significantly restructure their dispute resolution mentality.

Precisely this restructuring is the biggest challenge for the regional legal orders, and

only time will tell if it possible and successful.

There is little doubt that mediation’s journey into the centre of formal

disputing practices is likely to continue unabated in the near future in many

jurisdictions globally. With mediation’s future across the globe seemingly secured as

the process is increasingly embedding within civil court systems, it is more and more

likely that lawyers will continue to being involved and dominate in this field. New

non-traditional breeds of lawyers and emerging legal practice models may also

comport better with mediation activity. Shifts in traditional legal markets coupled

with increasing client awareness of, and receptivity to mediation may also stimulate

growth. Amidst this burgeoning activity, the motives and actions of lawyers relative

to mediation will continue to be subject to hard scrutiny. The storm over the lawyer’s

interaction with mediation will doubtless continue unabated.

However, through exploring mutual interests, making appropriate

concessions, listening and fostering mutual respect50

, lawyers and other candidate

professions can together chart growth of the process for the benefit of all in society51

.

My final thoughts are that legal or any other profession is entitled to

participate in mediation process as long as he/she acquires the appropriate skills and

training. As concerns the highly disputed matter of lawyers’ monopoly in mediation I

prefer to note that through proper regulating mediation practice and keeping away

their selfish and altruistic instincts, they will contribute significantly to the evolution

of this Alternative Dispute Resolution Model, ‘Mediation’.

50

“walking the talk”—Moffitt and Bordone(2005) , p. 517. 51

Clark Bryan, Lawyers and Mediation. Springer, New York, NY, USA, 2012, p.182

39

RESEARCH SOURCES

Bibliography

Clark B. (2012) Lawyers and Mediation. Springer, New York, NY, USA

AyeletSela (2009) Attorneys’ perspectives of mediation: an empirical analysis of

attorneys’ mediation referral practices, barriers and potential agency problems, and

their effect on mediation in Israel. A thesis Stanford Law School Stanford University

Anthimos A., (2012-2013) Handbook on Mediation, International Hellenic University

Murray, John S., Rau, Alan Scott, Sherman, Edward F (2nd

ed. 1996).Processes of

dispute resolutions: the role of lawyers

Cooley, John W.,(1996) Mediation Advocacy

Dauer, Edward.E.,(2000) Manual of Dispute Resolution: ADR Law And Practice,

Juris Publishing, Inc.

Waldman, Ellen (2011)Mediation Ethics : Cases and Commentaries, Jossey-Bass

Goldsmith, J. C. (2006) ADR in business : Practice and Issues across Countries and

Cultures, Kluwer Law International

David Spencer,Michael Brogan (2006) Mediation Law and Practice, Cambridge

University Press, New York, NY, USA

Giuseppe De Palo, Mary B. Trevor (2012)EU Mediation Law and Practice,Oxford

University Press, United Kingtom, UK, Great Britain

40

Websites

Geetha R., Role of attorneys in mediation process, http://www.americanbar.org

Pon S., (2012) How Lawyers Affect Mediation http://www.pon.harvard.edu

History of Mediation, http://www.mediationmatterssd.com

Johnston E., (2009) A Short History of Mediation http://cfrmediation.com

Nelson C., MEDIATION: Getting Your Client and the Other Side to the Table

http://www.mediates.com

Mediation in Greece. Current Trends, Future opportunities http://www.gmi-

mediation.com

Richard G. Spier, (2000) The Ten Biggest Mistakes Lawyers Make in Mediation

http://mediate.com

What is Mediation? http://www.wipo.int

Murray J., Madiation http://biztaxlaw.about.com

Roles of the Mediator http://mediate.com

Currie C., (2000) Should A Mediator Also Be An Attorney? http://mediate.com

Melamed J., (2009) A View of Mediation in the Future http://mediate.com

What is the mediator's role http://www.dol.govt.nz

Legal Frame of Mediation in Greece http://mediation-net.eu

Morek R., (2013) Mandatory Mediation in Italy – Reloaded

http://kluwermediationblog.com

41

Indicative Reading

Carrie Menkel-Meadow, Mediation: Theory, Policy, and Practice, Ashgate

Publishing Company

Buhring-Uhle, Christian / Kirchhoff, L. / Scherer, Gabriele, Arbitration and

Mediation in International Business, 2006, Series International Arbitration Law

Library, Vol. 15

De Palo,Giuseppe / Trevor, Mary B.,EU Mediation Law and Practice, O.U.P., (2012)

Nancy F. Atlas,Stephen K. Huber,E. Wendy Trachte-Huber (2000) Aternative Dispute

Resolution: The Litigator's Handbook, American Bar Association, New York, NY,

USA

Nadja Marie Alexander (2006) Global Trends in Mediation,Kluwer Law

International, The Netherlands